Lively Photos, Inc.

National Labor Relations Board - Board Decisions

May 11, 1959

123 N.L.R.B. 1054 (N.L.R.B. 1959)

1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer's contention that the Petitioner violated the Board's 24-hour rule is
without merit under the circumstances. The Board's 24-hour rule applies only
when employers or unions make election speeches on company time to massed
assemblies of employees within 24 hours before the scheduled time for conducting
an election? It is clear from the evidence that the Employer here, did not assemble
a group of employees for the union representatives to address.
As the evidence reveals that the Petitioner did not engage in any prohibited election-
eering or campaign activities in the vicinity of the polling areas during the time of
the voting by the employees, the Regional Director concludes and finds that all the
allegations contained in the objections filed by the Employer are without merit.
In conclusion, the Regional Director recommends that the objections be over-
ruled in their entirety, and that a certification of representatives be issued.
As provided in Section 102.69 of the Board Rules and Regulations, Series 7, as
amended, any party desiring to take exception to this report and recommendation
may, within 10 days from the date of issuance thereof, file with the Board in Wash-
ington, D.C., 7 copies of such exceptions. Immediately upon the filing of such
exceptions the party filing shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director for the Twelfth Region, National
Labor Relations Board, 412 East Cass Street, Tampa 2, Florida.
CERTIFICATE OF SERVICE
I hereby certify that I served the above report on objections this date, by certified
mail, on the following listed addresses:
Setzer's Super Stores, Inc., Setzer's Arlington
Corporation, Inc., and Flamingo Food Markets, Inc.
Attn: Ken White, Public & Industrial Relations Director
2321 Liberty Street
Jacksonville, Florida
Meat Cutters, Packinghouse and Allied Food Workers,
Local Union No. 433, affiliated with Amalgamated
Meat Cutters & Butcher Workmen of North America, AFL-CIO
Attn: Robert A. Ackerman, Sec'y-Treas.
P.O. Box 143
Savannah, Georgia
By Regular Mail to:
Frederick H. Lenczyk, Esq.
921 Florida Title Bldg.,
Jacksonville 2, Florida
June C nezarcki.
-------------------------------
Regina W. Terrell, Designated Agent
National Labor Relations Board
March 12, 1959.
s peerless Plywood Company, 107 'NLRB 427.
Lively Photos, Inc., and Waldorf Pen Co., Inc. and Jennie
Mercieco
Miscellaneous Industrial Employees Union, Local 138, of the
Distillery, Rectifying Wine and Allied Workers International
Union of America, AFL-CIO and Jennie Mercieco. Cases Nos.
2-CA-5647 and 2-GB-2105. May 11, 1959
DECISION AND ORDER
On December 18, 1958, Trial Examiner Thomas N. Kessel issued
his Intermediate Report in the above-entitled proceeding, finding
123 NLRB No. 126.
LIVELY PHOTOS, INC., AND WALDORF PEN CO., INC. 1055
that the Respondents had engaged in and were engaging in certain
unfair labor practices, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel and the Respondents filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions,2 and recom-
mendations 3 of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1In adopting the Trial Examiner ' s finding that the Respondent Union lacked majority
status when it executed the union-security contract involved, we find it unnecessary to
decide whether Sanchez and Kaplan were supervisors . For even assuming , contrary to
the finding of the Trial Examiner, that they were supervisors , and hence excludable from
the unit , the Respondent Union, as the Intermediate Report shows, would still have
lacked majority status on the critical date herein.
In finding that the Respondent ' s violations of the Act commenced 6 months prior to the
filing of the charges herein , the Trial Examiner incorrectly computed such date to be
July 5, 1957, rather than June 5, 1957, the correct date. We hereby correct this minor
inadvertency which does not affect the validity of the Trial Examiner 's findings , conclu-
sions , and recommendations which we adopt.
3 Dlr. Jenkins agrees with the decision in this case. Moreover , he believes that it is
the Respondent's duty to prove a majority at the time of the execution of the contract,
and not the General Counsel's duty to prove the nonexistence of a majority at the time
of execution , a point which the court did not reach in Bryan Manufacturing Company,
246 F. 2d 575 (C.A., D.C.), enforcing 119 NLRB 502.
Chairman Leedom joins in the decision in this proceeding because he deems himself
bound by the Board 's decision in Bryan Manufacturing Company, supra . Ile notes,
however, that the decision herein, which contrary to the express statutory mandate re-
quires that the parties litigate events which occurred many years before the filing and
service of the charges, graphically illustrates the defect of the majority position in the
Bryan case. The events in issue herein occurred in May 1954 ; the charges were not filed
until December 1957; and the only certainty at the hearing in November 1958 was that
none of the witnesses could clearly recall the details of the events which had occurred
some 41/ years before.
3 In order to effectuate the policies of the Act, our Order shall include a requirement
that the Respondent Companies , upon receipt from the Regional Director , of signed
copies of Appendix B which we shall require the Respondent Union to furnish to the
Regional Director , shall post such notices in the same manner and under the same condi-
tions as apply to Appendix A. Montgomery Ward J. Co., Incorporated, 121 NLRI 1.552.
We shall also order the Respondent Union to cease and desist from acting as the
collective-bargaining representative of any o'f the Respondent Companies ' employees unless
and until said Union shall have demonstrated its exclusive majority representative status
pursuant to a Board -conducted election among the Respondent Companies ' employees in
an appropriate unit . Bernhard-Altmann Texas Corporation , 122 NLRB 1289.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Respondents, Lively Photos, Inc., and Waldorf Pen Co.,
New York, New York, their officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Encouraging membership in Miscellaneous Industrial. Em-
ployees Union, Local 138, of the Distillery, Rectifying Wine and
Allied Workers International Union of America, AFL-CIO, or any
other labor organiaztion, by entering into, maintaining, or renewing
any agreement which requires their employees to join, or to maintain
their membership in, such labor organization as a condition of em-
ployment, unless such agreement has been authorized as provided in
Section 8 (a) (3) of the Act.
(b) Recognizing Miscellaneous Industrial Employees Union, Local
138, of the Distillery, Rectifying Wine and Allied Workers Interna-
tional Union of America, AFL-CIO, or any successor to this labor
organization, as the representative of any of their employees for the
purpose of collective bargaining unless and until said labor organiza-
tion shall have demonstrated its exclusive majority status pursuant
to a Board-conducted election among the Respondent Companies'
employees in an appropriate unit.
(c) Performing or giving effect to the agreements of May 17, 1954,
and August 1, 1956, or to any modification, extension, supplement, or
renewal thereof, or to any other contract, agreement, or understand-
ing entered into with Miscellaneous Industrial Employees Union,
Local 138, of the Distillery, Rectifying Wine and Allied Workers
International Union of America, AFL-CIO, relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until said labor organization
shall have demonstrated its exclusive majority status pursuant to a
Board-conducted election among the Respondent Companies' em-
ployees in an appropriate unit, provided, however, that nothing herein
shall be construed to require the Respondent Companies to vary or
abandon any wage, hour, seniority, or other substantive feature of its
relations with their employees which the Companies have established.
in the performance of such agreements, or to prejudice the assertion
by its employees of any rights they have thereunder.
(d) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their right to self-organi-
zation, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
LIVELY PHOTOS, INC., AND WALDORF PEN CO., INC. 1057
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Miscellaneous
Industrial Employees Union, Local 138, of the Distillery, Rectifying
Wine and Allied Workers International Union of America, AFL-
CIO, or any successor labor organization, as the collective bargain-
ing representative of any of its employees, unless and until said labor
organization shall have demonstrated its exclusive majority status
pursuant to a Board-conducted election among the Respondent Com-
panies' employees in an appropriate unit.
(b) Post at their plants in New York City, copies of the notices
attached hereto marked "Appendix A" and "Appendix B." A Copies
of said notices, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by the Respondent Companies'
respective representatives, be posted by the Respondent Companies im-
mediately upon receipt thereof and be maintained by them for 60
consecutive days thereafter in conspicuous places, including all places
where notices to their employees are customarily posted. Reasonable
steps shall be taken by the Respondent Companies to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, as to the steps the Respond-
ent Companies have taken to comply herewith.
B. The Respondent, Miscellaneous Industrial Employees Union,
Local 138, of the Distillery, Rectifying Wine and Allied Workers
International Union of America, AFL-CIO, its officers, representa-
tives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Acting as the exclusive bargaining representative of any of
the employees of the Respondent Companies unless and until said
labor organization shall have demonstrated its exclusive majority
status pursuant to a Board-conducted election among the Respondent
Companies' employees in an appropriate unit.
(b) Causing or attempting to cause Lively Photos, Inc., and
Waldorf Pen Co., Inc., to discriminate against employees in violation
of Section 8 (a) (3) of the Act by entering into, maintaining, or renew-
ing any agreement with Lively Photos, Inc., and Waldorf Pen Co.,
Inc., which requires employees to join, or maintain their membership
in, Miscellaneous Industrial Employees Union, Local 138, of the
Distillery, Rectifying Wine and Allied Workers International Union
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
508889-60-vol. 123-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, AFL-CIO, as a condition of employment, unless such
agreement has been authorized as provided in Section 8 (a) (3) of
the Act.
(c) In any like or related manner restraining or coercing employees
of Lively Photos, Inc., and Waldorf Pen Co., Inc., in the exercise of
their rights guaranteed in Section 7 of the Act :
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in New York City,
or other places where notices to its members are customarily posted,
copies of the notice attached hereto marked "Appendix B.",5 Copies
of said notice, to be furnished by the Regional Director for the Sec-
ond Region, shall, after being duly signed by an authorized representa-
tives of the Respondent Union, be posted by the Respondent Union
immediately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Second Region signed
copies of the notice marked "Appendix B" for posting at the Respond-
ent Companies' plants, as provided above. Copies of said notice, to
be furnished by the said Regional Director, shall, after being signed
by Respondent Union's representative, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for the Second Region in writing,
with 10 days from the date of this Order, as to what steps the
Respondent Union has taken to comply herewith.
C. The Respondent Companies, Lively Photos, Inc., and Waldorf
Pen Co., Inc., their officers, agents, successors and assigns, and the
Respondent Union, Miscellaneous Industrial Employees Union, Local
138, of the Distillery, Rectifying Wine and Allied Workers Interna-
tional Union of America, AFL-CIO, its officers, representatives,
agents, successors, and assigns, shall cease and desist from giving
effect to any checkoff cards heretofore executed by the employees of
the Respondent Companies authorizing the deduction of initiation
fees and/or periodic dues from their wages for remittance to the
Respondent Union, and they shall jointly and severally reimburse
the employees and the former employees of the Respondent Com-
panies for the moneys deducted from their earnings on behalf of, or
paid by them to, the Respondent Union since June 5, 1957, pursuant
to the unlawful union-security contract between the Respondents.
5 See footnote 4.
LIVELY PHOTOS, INC., AND WALDORF PEN CO., INC. 1059
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT encourage membership in Miscellaneous Indus-
trial Employees Union, Local 138, of the Distillery, Rectifying
Wine and Allied Worker. .international Union of America, AFL-
CIO, or any other labor organization, by entering into, main-
taining, or renewing any agreement which requires our em-
ployees to join, or maintain their membership in, such labor or-
ganization as a condition of employment, unless such agreement
has been authorized as provided in Section 8(a) (3) of the Act.
WE WILL NOT recognize Miscellaneous Industrial Employees
Union, Local 138, of the Distillery, Rectifying Wine and Allied
Workers International Union of America, AFL-CIO, or any
successor to this labor organization, as the representative of any
of our employees for the purpose of collective bargaining unless
and until said labor organization shall have demonstrated its
exclusive majority status pursuant to a Board-conducted elec-
tion among our employees in an appropriate unit.
WE WILL NOT perform or give effect to the agreements of May
17, 1954, and August 1, 1956, or to any modification, extension,
supplement, or renewal thereof, or to any other contract, agree-
ment or understanding entered into with Miscellaneous Indus-
trial Employees Union, Local 138, of the Distillery, Rectifying
Wine and Allied Workers International Union of America, AFL--
CIO, relating to grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment, unless
and until said labor organization shall have demonstrated its
exclusive majority status pursuant to a Board-conducted election
among our employees in an appropriate unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities, except to the
extent that such rights maybe affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8(a) (3) of the Act.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL withdraw and withhold all recognition of Miscella-
neous Industrial Employees Union, Local 138, of the Distillery,
Rectifying Wine and Allied Workers International Union of
America, AFL-CIO, or any successor labor organization, as the
collective bargaining representative of any of our employees,,
unless and until said labor organization shall have demonstrated
its exclusive majority status pusuant to a Board-conducted elec-
tion among our employees in an appropriate unit.
WE WILL reimburse our employees and former employees for
the initiation fees, dues, and other moneys deducted from their
earnings on behalf of, or paid by them to, Miscellaneous Indus-
trial Employees Union, Local 138, of the Distillery, Rectifying
Wine and Allied Workers International Union of America,
AFL-CIO, since June 5, 1957, pursuant to our unlawful union-
security contract with the aforementioned labor organization.
LIVELY PHOTOS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
WALDORF PEN CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF MISCELLANEOUS INDUSTRIAL EMPLOYEES
UNION, LOCAL 138, OF TIIE DISTILLERY, RECTIFYING WINE AND AL-
LIED WORKERS INTERNATIONAL UNION OF AMERICA, AFL-CIO, AND
TO ALL EMPLOYEES OF LIVELY PHOTOS, INC., AND WALDORF PEN
Co., INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT act as the exclusive bargaining representative of
any of the employees of Lively Photos, Inc., and Waldorf Pen
Co., Inc., unless and until we shall have demonstrated our exclu-
sive majority representative status pursuant to a Board-con-
ducted election among the employees of said Companies in an
appropriate unit.
LIVELY PHOTOS, INC., AND WALDORF PEN CO., INC. 1061
WE WILL NOT cause or attempt to cause Lively Photos, Inc.,
and Waldorf Pen Co., Inc., to discriminate against their em-
ployees in violation of Section 8(a) (3) of the Act by entering
into, maintaining, or renewing any agreement with Livey Photos,
Inc., and Waldorf Pen Co., Inc., which requires their employees
to join, or maintain their membership in, our labor organization
as a condition of employment, unless such agreement has been
authorized as provided in Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
the employees of Lively Photos, Inc., and Waldorf Pen Co., Inc.,
in the exercise of their rights guaranteed in Section 7 of the Act.
1VE WILL reimburse all the employees and former employees of
Lively Photos, Inc., and Waldorf Pen Co., Inc., for the initiation
fees, dues, and other moneys deducted from their earnings by the
aforementioned companies on our behalf, or paid by the employees
to us, since June 5, 1957, pursuant to our unlawful union-security
contract with said companies.
MISCELLANEOUS INDUSTRIAL EMPLOYEES
UNION, LOCAL 138, OF THE DISTILLERY,
RECTIFYING WINE AND ALLIED WORK-
ERS, INTERNATIONAL UNION OF AMER-
ICA, AFL-CIO,
Labor Organization.
Dated-------- -------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges and amended charges filed by Jennie Mercieco, an individual,
against the above-named corporate Respondents, herein collectively called the
Company, and against the above-named labor organization whose name appears
herein as amended at the hearing and who herein is called the Union, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Second Region (New York, New York), issued on August 28, 1958, an order
consolidating the above cases and complaint alleging that the Company and
Union had engaged in and were engaging in certain unfair labor practices affecting
commerce within the meaning of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the order consolidating, the complaint, the charges,
and a notice of hearing were duly served on all parties.
In substance, the conduct by the Company and Union alleged to be unlawful
consists of the maintenance and enforcement during the 6-month period preceding
the filing of the charges of a contractual relation between them which began on
May 17, 1954, and has continued without interruption since then. The subsisting
contract as did the contract first entered on May 17, 1954, contains a union-security
provision requiring membership in the Union after a specified grace period as a
condition of continued employment by the Company's employees. The complaint
alleges that on May 17, 1954, the Union did not represent a majority of the Com-
pany's employees in an appropriate unit and was consequently forbidden by the Act
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from entering a contract with the Company as their exclusive bargaining represen-
tative and from incorporating in the contract the union-security provision contained
therein. By maintaining and enforcing the aforesaid contractual relation the
Company allegedly violated Section 8(a)(1), (2), and (3) of the Act and the
Union violated Section 8(b)(1)(A) and (2) of the Act. The answers filed by
the Company and Union deny the commission of unlawful conduct.
Pursuant to notice, a hearing was held at New York, New York, on November
3 to 5, 1958. All parties were represented by counsel or other representative. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence was afforded all parties. The General Counsel filed a brief which has
been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE COMPANY
Lively Photos, Inc., and Waldorf Pen Co., Inc., are and during times relevant
hereto were commonly owned New York corporations engaged in various light
manufacturing operations in New York City. Both are and were commonly
housed, used the same personnel, maintained single records, and had identical
direction in their business operations and labor policies. For purposes of this
proceeding Lively Photos, Inc., and Waldorf Pen Co., Inc., constitute a single
employer. The complaint alleges and the Company and Union admit that in 1957
Waldorf Pen manufactured and sold products valued in excess of $500,000 of which
products valued in excess of $100,000 were shipped from New York to other States
in interstate commerce. From these facts I find that the Company is engaged in
commerce within the meaning of the Act and that the assertion of the Board's
jurisdiction over its operations in these proceedings will effectuate the policies of
the Act.
H. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Industrial Employees Union , Local 138, of the Distillery , Rectify-
ing Wine and Allied Workers International Union of America , AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
As noted, the crucial question in this case is whether on May 17, 1954, when
the Company signed its contract with the Union, the latter had been previously
designated as the bargaining representative by a majority of the Company's em-
ployees in an appropriate unit. The Company's records in evidence for the pay
period including May 17, 1954, show a maximum complement of 13 production
and maintenance employees comprising an appropriate unit. Of these there are two
as to whom there is some question concerning their supervisory status. One, Ray-
mond Sanchez, was referred to at the hearing as a foreman in charge of an un-
specified group of employees. All that can be determined as to his activities is
that he took charge of the work finished by employees. The other, Meyer Kaplan,
appears also to have been designated a foreman. The record shows only that he
was a machinist and that he spent most of his time repairing the Company's ma-
chines and a small part of his time doing photographic work. Such information
is insufficient, despite their titles as foreman, to establish that Sanchez or Kaplan
were vested by their employer with the authority over personnel specified in the
Act necessary to permit a finding that they were supervisors within the meaning of
the Act and hence excludable from an appropriate unit of rank-and-file employees.
Accordingly, the appropriate unit during the pertinent period consisted of 13 pro-
duction and maintenance employees. For the Union to have represented a majority
of the employees in the foregoing unit on May 17, 1954, it must on that date have
been designated as bargaining representative by at least 7 such employees.
According to Dominick Pape, who is now secretary-treasurer of the Union and
who in May 1954 was in charge of the Union's organization of the Company's em-
ployees, no more than six, seven, or eight designations had been obtained from these
employees before the May 17, 1954, contract was signed. Pape stated at the hearing
that he was unable to recall the names of any of these employees. He had, how-
ever, prior to the hearing, given two sworn statements to a Board investigator in
which he had stated that the records of his Union reveal that the persons who had
signed designation cards which constituted the basis for the Union's claim of majority
status in the Company's shop are Helen Romanko, Carmen Rodriquez, Frances Olmo,
LIVELY PHOTOS, INC., AND WALDORF PEN CO ., INC. 1063
Dorothy Prioleau, Charlena Prioleau, Edgar Morrer , Jr., and Edward John Daven-
port, Murray Heiden, now the Union 's president , was in May 1954 an organizer
for the Union . He testified that he and another organizer had solicited designa-
tions from the Company 's employees , and that he had secured seven or eight signed
pledge cards from these employees which he ultimately turned over to Pape. While
he claimed at the hearing that he could not remember the names of employees
whose signatures he had solicited , Heiden had also signed a sworn statement during
the investigation of this case listing the same seven employees as those included in
Pape's statement as the employees whose designations formed the Union's majority.
None of these cards was presented at the hearing by the Union despite the General
Counsel 's request for them. The Union 's explanation was that notwithstanding a
diligent search for them they could not be found and presumably had been lost.
Harry Kaplan, the Company 's president in May 1954 , maintained at the hearing
that before the contract was signed he had been shown by Heiden a list of 9 or
10 names of the Company 's employees on a sheet of paper as well as 9 or 10
cards which also bore the names of these employees . According to Kaplan, Heiden
had informed him that these documents had been signed by the employees whose
names appeared thereon , and he had taken for granted that this was so . Abraham
Klein, the Company 's secretary -treasurer in May 1954 , related that before the
signing of the contract either Pape or Heiden had presented to him and Kaplan in
the Company 's office a group of seven or eight cards signed by employees and that
these employees had then been called in and in the presence of himself , Kaplan,
and the Union 's representative acknowledged they had signed these cards. Klein
specified that among these seven or eight employees were Charlena Prioleau, Dorothy
Mae Prioleau , and Helen Romanko.
Completely disregarding the unreliable testimony of Harry Kaplan that he had
been presented with a list of 9 or 10 names and 9 or 10 designation cards, the
majority claim of no other defending witness exceeds 8 designations . From the
testimony and sworn statements of Klein, Pape, and Heiden I find that included in
their maximum claim of eight designations are those of Charlena and Dorothy Mae
Prioleau and of Helen Romanko.
Charlena Prioleau testified that she had no recollection of signing anything for
the Union before the contract became effective . She recalled that she had signed
a certain card at the desk of the Company 's bookkeeper who had summoned her to
her office for this purpose . This card according to the record was a form of
application for membership in the Union which was signed by the witness on
May 28, 1954 , at the request of the bookkeeper . It should here be noted that
Pape testified that he had given the bookkeeper application cards for membership
in the Union with instructions that she have them signed by new employees at
the conclusion of the grace period provided by the contract . The bookkeeper
testified that she had procured the signatures to these forms of these employees
who had been employed before May 17, 1954, and that this had been accomplished
on May 28, 1954. While Charlena Prioleau conceded the possibilities that she
had signed a card for the Union before May 28, she insisted she had no recollection
of signing anything of this sort before then . She was certain that she had not
known that the Union had come into the shop until she was asked to sign the
membership application form by the bookkeeper.
Helen Romanko had also been summoned on May 28, to sign an application
for membership in the Union . She testified that she had not signed any document
for the Union before that date.
Dorothy Mae Prioleau testified that she had signed a card in the presence of
Pape and Kaplan in the latter 's office and that Kaplan had then instructed her and
other employees who had been called in for the same purpose to tell anyone who
might ask them to join a union that they were already in a union . She could not
recall at the hearing the nature of the document she had signed other than it was
something about a union . She specifically denied having signed any card for the
Union before then.
Employee Carmen Rodriguez was also questioned concerning any designation
she may have given the Union . She acknowledged that she had signed for the
bookkeeper the Union 's application for membership which is dated May 28,
1954. She related that about 2 or 3 days before this incident , she and employee
Frances Olmo had been accosted in the lobby of the Company 's premises, or on
the street nearby, by two unidentified men who had requested them to join the
Union . Rodriguez testified that she was quite certain that she had then signed
a card but has no recollection whether the card was a designation for the Union.
She is not certain whether she read the card at the time.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I was impressed with the truthfulness of the foregoing employee witnesses.
Their inability to recall positively all circumstances as to which they were examined
does not detract from their verity. I am satisfied that both Prioleaus and Romanko
reliably testified that they had not, before signing the Union 's application for
membership form on May 28, 1954 , signed any other document for the Union. I am
consequently convinced that they did not sign cards designating the Union as their
representative before the signing of the May 17, 1954, contract . While it is true
that there has been no identification of the union for which Rodriguez admitted
signing a card, I would not in the circumstances of this case find that the General
Counsel has proved preponderantly that she failed to sign a card for the Union
before May 17, 1954 . Thus, I find by the elimination of signatures of the Prioleaus
and Romanko from the claims of the defending witnesses that the maximum number
of cards which could have been obtained from the Company 's employees before
May 17, 1954 , was five. This was short of the number required to establish the
Union 's majority on that date.
In arriving at the above result, I have considered the assertion by the Company
and Union in support of their majority claim that in the period just before the
May 17 contract was signed , there was a strike by the Company 's employees to force
recognition of the Union as their representative , and that a majority of the employees
participated in this strike . I find that while there may have been picketing of
the Company 's premises at the time in question by agents of the Union or by other
strangers , none of the Company's employees participated therein whose designations
are relied upon by the defense to support the claim of majority. Kaplan and
the Company 's bookkeeper testified they had no recollection of a strike such as
that described by Pape, Heiden , and Klein which completely shut down the Com-
pany's operations for over a day. I am satisfied that however poor Kaplan's
memory is , as the Company 's president he would have recalled such a circumstance
if in fact it had occurred . None of the employee witnesses recalled such a strike.
Finally, and what is most convincing , the Company 's payroll records show no sig-
nificant time loss by employees during the pertinent period. The explanation that
the strike was ended upon agreement of the Company to pay the striking employees
for the day and a fraction while they were picketing is utterly unconvincing in the
face of the daily postings punched on the employee timecards showing uninter-
rupted operation of the Company 's shop during any time when the strike assertedly
could have occurred.
Finally, in rejecting the testimony of the defending witnesses that the Union had
secured the required majority and had demonstrated it to the Company. I have
been influenced by the inconsistency of their accounts of what had occurred . In this
connection I have been mindful that the crucial events happened more than 4 years
before the hearing and have made allowance for the inability of witnesses to remem-
ber all that took place in May 1954 . I also have particular misgivings about the
probity of Klein's testimony that either Pape or Heiden had handed him the signed
cards of employees whom he thereupon called in to verify their signatures . I reject
such testimony given in the face of Pape's denial that he had shown the cards to any
company official and the failure of Kaplan or Heiden to corroborate such account.
In short , I do not credit the testimony of any of the defending witnesses concerning
the procurement of employee designations before the signing of the May 17, 1954,
contract , or the agreement of the Company to accord recognition to the Union and
to enter contractual relations with it upon being satisfied that the Union had been
selected by its employees as their exclusive collective-bargaining representative.
I find that whether the Union in fact represented any of the Company's employees
on May 17 , 1954, that it did not represent a majority of them in an appropriate unit
of production and maintenance employees . In this circumstance when the Company
and the Union on that date entered an agreement providing therein that the Com-
pany's employees must as a condition of continuing employment become members
of the Union they did not comply with the proviso to Section 8(a) (3) of the Act.
It is conceded that the contractual relation between the Company and the Union
begun in May 1954 was continued without interruption by another contract between
the parties signed on August 1, 1956 , with an expiration date of May 15, 1957, and
with provision for automatic renewal thereafter . I infer that this contractual relation-
ship is still being maintained . The August 1956 contract also provides that con-
tinued employment for the Company is conditioned upon membership in the Union
following the statutory grace period and this requirement still subsists . It is ad-
mitted that the Company pursuant to its contractual relation with the Union has
deducted and continues to deduct from the earnings of its employees dues and
initiation fees for transmission to the Union.
LIVELY PHOTOS, INC., AND WALDORF PEN CO., INC. 1065
The charges initiating this proceeding against the Company and the Union were
served on these parties on December 5, 1957. No finding that the Act has been
violated by them may therefore be made with respect to their conduct occurring be-
fore July 5, 1957. Thus, a finding that the Act was violated cannot be premised
upon the mere execution of the May 17, 1954, and the August 1, 1956, contracts.
However, the Board has declared that "when parties agree to a union security arrange-
ment which does not conform to the requirements of the proviso to Section 8(a) (3),
they violate the Act not only when they agree to the arrangement but every day that
they continue the unlawful arrangement in effect." See Bryan Manufacturing Com-
pany, 119 NLRB 502. In accord with the holding in that case, it must here be found
that the Company and the Union by uninterruptedly continuing in effect from July
5, 1957, the illegal arrangement started on May 17, 1954, violated the Act. In the
case of the Company it thereby violated Section 8(a)(1), (2), and (3) of the Act.
The Union's conduct was violative of Section 8(b) (1) (A) and,(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company and the Union set forth in section III, above,
occurring in connection with the operations of the Company described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstructing
the free flow thereof.
V. THE REMEDY
Having found that the Company and the Union have engaged in certain unfair
labor practices, it will be recommended that they cease and desist therefrom, and
that they take certain affirmative action, designed to effectuate the policies of the Act.
It has been found that the Company and the Union have unlawfully continued in
effect and enforced the unlawful union-security agreements of the May 17, 1954, and
August 1, 1956, contracts. It will therefore be recommended that the Company
cease giving effect to such agreements, or to any extensions, renewals, modifications,
or supplements thereto or to any superseding agreements with the Union, unless and
until the Union shall have been duly certified by the Board as the representative of
the Company's employees in an appropriate unit.
Nothing herein, however, shall be construed as requiring the Company to vary any
wages, hours of employment, rates of pay, seniority, or other substantive provisions
in its relations with the employees themselves, which the Company had established
in the performance of said agreements. To the extent that the Company has deducted
periodic dues and initiation fees from wages of employees and former employees
for remittance to the Union, it will be recommended that the Company and the
Union, jointly and severally, be ordered to make whole each of said employees for the
amount of dues and initiation fees deducted and remitted to the Union from his
wages on and after July 5, 1957.
In view of the nature of the unfair labor practices committed, the commission by
the Company and the Union of similar and of other related unfair labor practices
may be anticipated. It will therefore be recommended that the Company and the
Union be ordered to cease and desist from in any manner infringing upon the rights
guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case I make the following:
CONCLUSIONS OF LAW
1. Lively Photos, Inc. and Waldorf Pen Co., Inc., are a single employer within
the meaning of Section 2(2) of the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Miscellaneous Industrial Employees Union, Local 138, of the Distillery, Recti-
fying Wine and Allied Workers International Union of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a contract with the Union containing an unlawful
union-security provision on and after July 5, 1957, the Company has violated Section
8(a)(1), (2),and (3) of the Act.
4. By maintaining and enforcing a contract with the Company containing an
unlawful union-security provision on and after July 5, 1957, the Union has violated
Section 8(b)(d)(A) and (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]